Children's Hospital of the King's Daughters, based in Norfolk, is on a team with local police and prosecutors to provide services for child abuse. Some local defense attorneys are raising questions about the agreement

Children's Hospital of the King's Daughters, based in Norfolk, is on a team with local police and prosecutors to provide services for child abuse. Some local defense attorneys are raising questions about the agreement (Aileen Devlin/Daily Press)

Some criminal defense attorneys are crying foul over longstanding agreements between a famed local hospital — Children’s Hospital of the King’s Daughters — and local police and prosecutors to cooperate on child abuse investigations.

These defense lawyers assert that the agreement — which they learned of only recently — makes CHKD doctors part of the “prosecution team” rather than truly independent experts, which they fear could tip the scales of justice.

But prosecutors say there’s nothing wrong with the agreements — and that the lawyers’ assertions are baseless.

The deals are between CHKD, a Norfolk-based hospital, and local commonwealth’s attorneys, city attorneys, police and social service agencies from six area cities: Newport News, Hampton, Norfolk, Chesapeake, Portsmouth and Virginia Beach.

The “memorandums of understanding” have been in existence since at least 2013.

“We, the undersigned agencies … do hereby agree to the continuation of a multidisciplinary team to better investigate, diagnose and prosecute cases of child maltreatment,” according to the agreements between Children’s Hospital of the King’s Daughters and the other entities. The teams, coordinated through CHKD, also agree to “exchange information” as part of the investigations.

Deputy Newport News Public Defender David Lee contends that the fact that CHKD is working so closely with prosecutors helps explain things.

“You kind of get the sense that this organization has one thumb on the scales of justice,” he said. “For a long time I’ve been brooding over the fact that whenever CHKD doctors testify in court, in very, very ambiguous factual circumstances, they nevertheless consistently find clear evidence that injuries were inflicted due to abuse — as opposed to accidents, or some sort of underlying medical condition, or some other reason.”

Moreover, Lee asserts that prosecutors had a legal obligation to share the existence of the agreement with criminal defense attorneys before trial. If the lawyers had known about it, he said, they could have attempted to demonstrate in court that CHKD experts are biased.

“People think, it’s CHKD, it’s just for the kids,” Lee said. “The prosecutors who call them as witnesses are cashing in on the goodwill that CHKD has created. … Because people don’t know. When the prosecutor calls them (to the stand), they don’t say they are a CHKD doctor who signed an agreement with prosecutors to prosecute people. The jurors just know it’s a CHKD doctor.”

Another veteran defense attorney, J. Ashton Wray Jr., also contends the agreements mean that CHKD is “part of the prosecution’s team.”

“That’s the shameful thing about this — they are being offered as almost independent experts,” Wray said. “So you want to ask the jurors, ‘Do you understand that the witnesses that CHKD has here are not as independent as (true) independent witnesses?’ … That’s what’s not been revealed to juries. It will be now.”

A third defense lawyer, Ron Smith, said he’s long sensed that CHKD experts come to court with a seeming stake in the outcome, more so than many state medical and forensics experts who testify.

“Their witnesses do come to court advocating a position,” Smith said of CHKD. “They don’t just come to court just looking at the facts. They advocate with the commonwealth. ... That’s always been my experience, and I think that’s a common experience.”

‘Not a secret’

But prosecutors contend any such concerns are meritless.

Hampton Commonwealth’s Attorney Anton Bell said that Children’s Hospital of the King’s Daughters does not find evidence of abuse in anywhere close to all cases. It just seems that way, he said, because those are the only cases that make it to court.

“To say that all they do is want to prosecute every case where a child is injured, I got cases right now where I can show that that’s an outright, blatant lie,” Bell said.

It’s the police, not the hospital, who lead child abuse investigations, he said. “And CHKD says that, ‘This is what we find to corroborate what the witnesses said’ — if those injuries are consistent with abuse or inconsistent with abuse,” Bell said. “They don’t say anything else because they weren’t there.”

Newport News Deputy Commonwealth’s Attorney Ruth Burdge — who has prosecuted child abuse cases for more than two decades — agrees, saying CHKD is far from a rubber stamp for the prosecution.

“This is not a tool used just for putting people in jail,” Burdge said. “It’s not that at all. Would they prefer that we just make the charge and have somebody arrested and wait until we get to court?”

A primary goal of the agreements, she said, is to put the involved agencies at the same table, in part so that abused children don’t have to keep being interviewed “five different times” by multiple agencies in traumatic circumstances.

“To me, this is just silly,” Burdge said. “We’ve got people dying, and somebody’s going to try to paint a bad light about something that’s done to just help children. … This is what people want to make a big deal about?”

Children’s Hospital of the King’s Daughters, too, pushed back on any assertions of bias, saying its participation in the program “does not alter the impartiality of CHKD’s child abuse experts.”

“In fact, in a substantial number of cases, our child abuse team is an integral part of a process that prevents baseless allegations of child abuse from reaching court,” said Ridgely Ingersoll, CHKD’s director of public relations.

The agreement’s language on better investigating, diagnosing and prosecuting cases, she said, “means working together to minimize trauma to innocent children who may already be victims of abuse and to more accurately identify when abuse has occurred, and when it has not.”

Ingersoll added that CHKD’s child abuse program is one of 850 similar ones across the country accredited by the National Children’s Alliance. Those programs, she said, are “designed to be effective, efficient and put the needs of the child victims first.”

Mandates in law

Local prosecutors also say the General Assembly mandates multidisciplinary teams — so their existence shouldn’t come as a surprise.

In one section of law, the state is required to “foster” the creation of “hospital-based” or “community-based” teams to “provide consultation … during the investigation of selected cases involving child abuse or neglect, and to make recommendations regarding the prosecution of such cases.”

A second statute requires commonwealth’s attorneys statewide to establish “multidisciplinary child sexual abuse response teams,” which “may conduct reviews of any other reports of child abuse and neglect” at the request of “any team member.”

“We’re not trying to hide anything,” Burdge said.

“It’s not a secret, it’s in the code,” Bell said. “If this had some merit to it, then I would start addressing the issue. But what do you say about a situation where you’re mandated to do something? I’m supposed to disclose something that every commonwealth’s attorney is forced to do by code? It’s crazy.”

“The allegation of bias and withholding is absurd,” added Amanda Howie, a spokeswoman with the Norfolk Commonwealth’s Attorney’s Office.

She said the multidisciplinary team system is not only outlined in state law — which “is clearly a public document” — but is also “documented as best practice for effective, efficient, and ethical handling of reports of child abuse and neglect.” And defense lawyers, Howie said, can always talk to CHKD experts both before and during the trial.

Learning of the agreement

The current issue began a few months ago, when Lee said he was thinking about the “extraordinary expense” that CHKD must spend on the child abuse program. On a hunch, he said, he filed a Virginia Freedom of Information Act request on the state Department of Criminal Justice Services in Richmond, thinking CHKD might be getting a state grant.

His hunch proved correct.

The documents he received back show that the Department of Criminal Justice Services awarded CHKD $376,000 in grants in each of the past two years. The hospital’s application indicated that the money would help defray the costs of the child abuse program, which CHKD said ran a $796,000 deficit in 2017.

Also in the Department of Criminal Justice Services’ response to Lee’s FOIA, he received the agreements between CHKD and local police, prosecutors and other entities for the past five years. (The hospital had included the memorandums as part of its grant applications for the money).

Lee informed the Virginia Association of Criminal Defense Lawyers about his findings, and that organization has filed additional open records requests on area prosecutors to further look into the matter.

Under a 1963 U.S. Supreme Court decision, Brady v. Maryland, prosecutors have an obligation to share evidence that could support a defendant’s innocence claim. That evidence is often referred to as “exculpatory evidence” and includes “impeachment evidence” that can be used to raise questions about a witness’ potential biases.

A failure to share such evidence, which lawyers often refer to as “Brady material” — a reference to the high court’s 1963 ruling — is considered a “Brady violation.”

Lee, for his part, contends that the rules required prosecutors to turn over to defense lawyers the cooperating agreements with CHKD. “If a commonwealth’s attorney doesn’t see this as exculpatory and that it needs to be turned over, they probably shouldn’t be doing that job,” he said.

Wray, on the other hand, said it was a closer call, but he also asserted that the agreements should have been turned over. “Some Brady disclosures are not patently obvious,” Wray said. “This is something that is not patently obvious, but is something that in good practices should have been disclosed.”

The “real question,” Wray said, is whether not telling defense attorneys about the agreements could unravel any past convictions. That could happen, he said, in a case in which a CHKD doctor’s testimony was crucial to the conviction. In that scenario, a high court would have to rule that the outcome of the case might have been different had all the evidence been shared.

Whatever happens with past cases, defense lawyers are sure to raise the agreement in the courtroom now.

Romeo Lumaban, a defense lawyer and former prosecutor for child abuse cases in Hampton, said he doesn’t think prosecutors had a legal duty to disclose the agreements under the Brady requirements. But now that they know about it, he said, defense lawyers can use it in court to challenge the CHKD witnesses — including how they are getting paid and what “side” or “sides” they are on.

Another criminal defense lawyer, Timothy Clancy, said he wasn’t ready just yet to “make the leap that it’s Brady material,” but he wants to know more.

“It’s certainly something that competent defense counsel is going to have to make an inquiry about,” he said. “We need to know — and juries need to know — that experts called by either side maintain their independence. I’m not ready to reach a conclusion yet, but certainly my antennae are up, and I’m concerned.”

Prosecutor responds

Bell, for his part, predicts that no past child abuse convictions will be overturned as a result of this issue. And he welcomes anyone who thinks his office should have shared the agreements to raise the issue in court.

“At the end of the day, here’s the thing: You can file your motion and watch what happens,” Bell said. “I can tell you what’s going to happen. The court is going to laugh at it. And I wouldn’t be surprised if the court says this is frivolous. … Good luck on that.”

He also said he knows nothing about how CHKD gets its money or grants — so that’s not something he would have had to disclose, either.

Legal experts weigh in

Ron Bacigal, a professor and criminal law expert at the University of Richmond School of Law, said whether the agreement should have been shared is a close call.

“It’s clearly relevant impeaching evidence,” he said. “Once the defense knows about it, they’ve certainly got ample right to bring this out … Now that they know about it, and they ask for it, they’re probably going to get it. But whether it’s sufficient and should have been disclosed as exculpatory evidence, it’s a close call.”

But when pressed, he said he did not think that prosecutors had a legal duty to inform defense lawyers about the existence of the agreement.

“To say that a commonwealth’s attorney should on his own recognize that it’s so exculpatory that they ought to volunteer it, that’s probably more of a burden than the Constitution puts on prosecutors,” he said.

On the other hand, Adam M. Gershowitz, a criminal law professor at the College of William and Mary School of Law, said the agreement between CHKD and prosecutors “does seem to me that it would be impeachment evidence” that should have been shared.

“It doesn’t mean the (witness) is lying or not giving an accurate, professional opinion,” he said. “But of course the jury could factor that in as to whether they believe the person.”

“It would perhaps be something that could cast some doubt on the honesty of the witness or at least be grounds for us to believe that there could be something else going on where we could question that person’s testimony,” Gershowitz said.

Olive branch?

In the end, Bell — while strongly maintaining prosecutors did nothing wrong — said he would be willing to tweak the agreement’s language to make clear to outsiders that only cases where there’s been a “finding of abuse” are prosecuted.

“Maybe what we need to do is clarify the language so it is absolutely crystal clear that the goal is not to prosecute just everybody,” Bell said. “If it makes them (defense lawyers) feel better, I guess we could adjust the language to get it more specific. … Why create enemies when you can have friends?”

CAPTION

The 2019 senior class of An Achievable Dream High School cheer as they find out they are receiving free Chromebook computers courtesy of Cox Communications Tuesday December 18, 2018. The students were surprised by Cox vice-president of customer care, Bruce Crooks, after being called into what they thought was a STEM assembly.

The 2019 senior class of An Achievable Dream High School cheer as they find out they are receiving free Chromebook computers courtesy of Cox Communications Tuesday December 18, 2018. The students were surprised by Cox vice-president of customer care, Bruce Crooks, after being called into what they thought was a STEM assembly.

CAPTION

The 2019 senior class of An Achievable Dream High School cheer as they find out they are receiving free Chromebook computers courtesy of Cox Communications Tuesday December 18, 2018. The students were surprised by Cox vice-president of customer care, Bruce Crooks, after being called into what they thought was a STEM assembly.

The 2019 senior class of An Achievable Dream High School cheer as they find out they are receiving free Chromebook computers courtesy of Cox Communications Tuesday December 18, 2018. The students were surprised by Cox vice-president of customer care, Bruce Crooks, after being called into what they thought was a STEM assembly.

CAPTION

Ghislain d'Humieres, senior vice-president for core operations at Colonial Williamsburg, meets friends outside the House of Burgesses to become a naturalized United States citizen Monday December 17, 2018. He and about 24 others others took the Oath of Allegiance administered by the United States District Judge Raymond A. Jackson.

Ghislain d'Humieres, senior vice-president for core operations at Colonial Williamsburg, meets friends outside the House of Burgesses to become a naturalized United States citizen Monday December 17, 2018. He and about 24 others others took the Oath of Allegiance administered by the United States District Judge Raymond A. Jackson.

CAPTION

A man was killed in a parking lot of a Hampton Family Dollar Saturday — with two young men seen running away from the scene. Hampton public information officer speaks about the shooting. (John Sudbrink/Daily Press)

A man was killed in a parking lot of a Hampton Family Dollar Saturday — with two young men seen running away from the scene. Hampton public information officer speaks about the shooting. (John Sudbrink/Daily Press)

CAPTION

Frank and Deane, a duo with local ties who just got a Grammy nomination for their children’s album, just released their first video.

Frank and Deane, a duo with local ties who just got a Grammy nomination for their children’s album, just released their first video.

CAPTION

Apple Will Create a $1 Billion Campus in Austin, TX. The new campus is planned to be erected across 133 acres, less than a mile from the present one. Adding between 5,000 and 15,000 jobs,

Apple Will Create a $1 Billion Campus in Austin, TX. The new campus is planned to be erected across 133 acres, less than a mile from the present one. Adding between 5,000 and 15,000 jobs,

Peter Dujardin can be reached by phone at 757-247-4749 or by email at pdujardin@dailypress.com